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Betone v. United States

United States District Court, Eighth Circuit

June 20, 2013



ROBERTO A. LANGE, District Judge.


Petitioner Jeffrey Betone was convicted of two counts of sexual abuse in violation of 18 U.S.C. § 2242 in this Court. Betone has filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Doc. 1. Betone also filed a Supplemental Motion to Vacate, Set Aside or Correct Sentence, which provided additional information on Betone's claims, Doc. 4, and a Memorandum of Law, Doc. 9. The Government filed a response, Doc. 19, and Betone filed a reply, Doc. 20. For the reasons set out below, the § 2255 motion is denied in part, counsel is appointed for Betone, and an evidentiary hearing is ordered.


Betone was indicted on February 11, 2009, on three counts of sexual abuse in violation of 18 U.S.C. §§ 1153, 2242(1)-(2), and 2246(2)(A)-(2)(B). United States v. Betone , CR 09-30011-RAL, Doc. 1. Count I charged Betone with sexual abuse by oral copulation of Tate Jensen on the night of March 9, 2005, while Jensen was passed out and had not provided consent. Counts II and III charged Betone with sexual abuse through oral copulation and anal penile penetration of Valance Blue Arm on May 5, 2008, while Blue Arm, who is a lowfunctioning individual, was threatened and placed in fear.

Betone testified at trial that he had engaged in consensual sex acts with both victims on the nights in question. Both Blue Arm and Jensen testified at trial that the sexual acts were not consensual. During the sexual assault of Blue Arm, only Betone and Blue Arm were present. No other eyewitnesses testified about the assault of Blue Arm. Sherry Turning Heart testified that she was an eyewitness to part of the sexual assault of Jensen. Turning Heart testified that she walked into the room and witnessed the end of the sexual assault and the ensuing scuffle between Betone and Jensen once Jensen awoke from being passed out. The Government also presented other evidence, including Betone's statement of FBI Agent Oscar Ramirez and medical records. At trial, the jury convicted Betone of two counts of sexual abuse: Count 1, sexual abuse of Jensen on March 9, 2005, when Jensen was incapable of appraising the nature of the conduct and was physically incapable of declining participation in and communicating unwillingness to engage in a sexual act; and, Count 2, sexual abuse in the form of oral copulation of Blue Arm by threat and placing Blue Arm in fear.

Edward Albright was the attorney initially assigned to represent Betone when the Federal Public Defender was appointed as counsel on February 17, 2009. Doc. 19-1 at 1. Jana Miner, the Senior Litigator of the Federal Public Defender's Office for North and South Dakota, filed a Notice of Appearance and became primary counsel for Betone on May 12, 2009. Doc. 19-1 at 1. Miner represented Betone through trial and until shortly before sentencing when this Court granted a Motion to Withdraw on August 16, 2010. Doc. 19-1 at 1. Jamie Damon, a Criminal Justice Act panel attorney outside of the Federal Public Defenders office, represented Betone at sentencing and on appeal.

Betone was sentenced to 151 months custody and 5 years supervised release on each count to run concurrently. Betone, CR 09-30011-RAL, Doc. 120. Betone appealed his conviction to the United States Court of Appeals for the Eighth Circuit, and the Eighth Circuit affirmed his conviction and sentence in a written opinion. United States v. Betone , 636 F.3d 384 (8th Cir. 2011). Betone currently is incarcerated at the Federal Correctional Institute in Seagoville, Texas, and now seeks relief from his conviction and sentence under 28 U.S.C. § 2255. Doc. 1.


Betone seeks relief on three grounds: (1) ineffective assistance of counsel; (2) failure of the prosecutor to disclose exculpatory evidence; and (3) newly discovered evidence. Doc. 1 at 4-7.

A. Timeliness of the § 2255 Motion

Under 28 U.S.C. § 2255, a prisoner in federal custody is subject to a one-year statute of limitations in applying for relief. 28 U.S.C. § 2255(f). Betone did not seek review from the Supreme Court of the United States following his direct appeal to the Eighth Circuit. Doc. 1 at 2. Therefore, his conviction became final 90 days after the Eighth Circuit entered its judgment. United States v. Hernandez , 436 F.3d 851, 856 (8th Cir. 2006). The mandate issued by the Eighth Circuit affirming Betone's conviction was filed on June 15, 2011. Betone, CR 09-30011-RAL, Doc. 136. The § 2255 motion was filed on June 8, 2012, within the one-year statute of limitations. Doc. 1. Betone's § 2255 motion was timely filed in accordance with 28 U.S.C. § 2255(f).

B. Ineffective Assistance of Counsel

Betone seeks relief based on a claim of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees the right to effective assistance of counsel in criminal prosecutions. U.S. Const. Amend. VI; see also Powell v. Alabama , 287 U.S. 45 (1932); Johnson v. Zerbst , 304 U.S. 458 (1938); Gideon v. Wainwright , 372 U.S. 335 (1963). Betone identifies multiple areas where he believes trial counsel was ineffective. For the reasons explained, none of Betone's ineffective assistance of counsel claims have any validity. Betone received effective and competent counsel and was not prejudiced by counsel, either at trial or on appeal, and is not entitled to an evidentiary hearing on the issue of whether counsel was effective. See Winters v. United States, No. ...

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